Brian Rudman: Justice Minister should take deep breath

Justice Minister Simon Power. Photo / Mark Mitchell

Justice Minister Simon Power is under attack from senior lawyers for his "kneejerk" approach to law reform following his decision to reform or repeal the obscure "claim of right" defence successfully used by the Waihopai spy dish balloon-poppers.

This comes on the heels of the Government's decision to scrap the defence of provocation for murder, used unsuccessfully by convicted murderer Clayton Weatherston.

Former president of the Auckland District Law Society Gary Gottlieb told a Sunday paper that "being in government involves leadership, not kneejerk reaction to aberrant cases like these. Laws shouldn't be changed because people get angry".

He said the claim of right defence was rare and that Weatherston was not acquitted.

Unchastened, Mr Power was in Monday's Herald contemplating another law to tinker with.

He said he would monitor the Proceeds of Crimes Act to see whether the Black Power gang's reoccupation of its Mt Wellington headquarters, seized from them under the act late last year, was "one-off or not".

What was he implying? That if people buy back or lease - as is the situation with the gang headquarters - a property seized from them under this draconian law, he will somehow further toughen the law.

Doesn't he recall that just a few months back he already did?

Under the Criminal Proceeds Recovery Act passed last October, the state now doesn't even need to get a conviction to seize a suspected house of crime. Under the previous act, the Mt Wellington gang headquarters could be seized by the state only after several gang members were convicted on serious drugs charges in 2008.

Under the new act the state doesn't need a conviction, just a suspicion. The onus is then on the property owner to prove the goods about to be seized were not funded from the proceeds of crime.

As civil libertarians have pointed out, it rides roughshod over a number of traditional civil liberties. Yet Mr Power seems still not satisfied. What is he now contemplating? To seize any property that suspected criminals rent from innocent landlords?

At last weekend's National Party conference, Police Minister Judith Collins was ululating about the loot the state had seized under the new act since December. Around $51 million in gang assets had been seized on suspicion they were spoils of crime, including lifestyle blocks and a $300,000 construction digger.

That's nearly double the $27.7 million seized in the 2008-2009 year under the old legislation, and four times the $13.14 million seized the year before.

Sadly there was no mention of white-collar criminals. When the act was passed, Government MPs said the "Remuera" fraudsters would also be targeted. But when?

On Monday, international auditing firm KPMG's latest fraud barometer report says that in the same six months that Ms Collins' hit squad seized $51 million from the gangs, white-collar crooks were before the courts facing fraud charges totalling $72 million.

How much property has been seized "on suspicion" from them? But I digress. Back to kneejerk law reforms.

Closing a little-used legal escape hatch solely because the Waihopai three's lawyers had a brilliant attack of the Rumpoles and embarrassed the state in the process, risks turning the justice system into a political plaything.

Is seeking revenge for political humiliation reason enough for chipping away at the independence of the legal system?

In March when the jury acquitted the three men, the rightwing commentariat went apoplectic. The Government wasn't far behind.

But talk of appeals was quietly dropped, not for lack of desire but because the much criticised judge and jury could not be faulted in law.

The Justice Ministry's just released initial "review of the claim of right defence" concedes "that the jury's verdict was consistent with the judge's summing up and the law as it currently stands in New Zealand". This echoes an earlier opinion by the Solicitor-General.

Summarising their defence, "saboteur" Father Peter Murnane told the jury they believed the spy satellite station was part of the United States war machine in Iraq and elsewhere. "I do believe that, on evidence, the base is involved in evil. Therefore I acted with friends and cut down the dome. Not to act against these things would be complicity with war crimes."

They argued that they believed they were acting lawfully in trying to stop this "evil". The judge told the jury if they were sure the defendants genuinely believed they'd acted lawfully, they had to acquit them. Which they quickly did.

The ministerial advisers have come up with five options for closing this escape hatch, including removal of the defence, which is what happened after public rage at Weatherston's unsuccessful use of the defence of provocation at his murder trial.

Mr Gottlieb, Law Society president Jonathan Temm and Queen's Counsel John Billington, have asked Mr Power to sit back and take a deep breath instead. Rushed law, driven by political pressure, can be bad law.